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Clara - II

6 September 2007

CRC 6 of 1971 begs an in-depth discussion into the distinction between real rights and personal rights on the one hand and the informal rights to land and new order rights on the other, as it affects deeds registration:

Real rights and personal rights distinguished
For an entity to be registered at a Deeds Registry, it must be a real right and not a personal right in the context of Sections 16 and 63 of the Deeds Registries Act 47 of 1937. Section 3(1) (r) of the Act also provides for registration of other real rights. Personal rights may not be registered in the Deeds Registry unless they are ancillary to a registrable transaction.

Real rights belong to the category of rights known as absolute rights, establishing a direct legal connection between a person and a thing, the holder of the right being entitled to control that thing within the limits of his right "Zonder opzicht op een ander mensch", i.e. without reference to another person. Real rights are divided into ius in re propria, conferring the most comprehensive and absolute control, i.e. dominium or ownership and ius in re aliena, conferring only limited real rights, i.e. less than ownership in a thing owned by a person other than the holder of such rights.

Ownership embraces the following absolute rights: the power to use, alter, destroy, or alienate the thing concerned, enjoy the fruits thereof, prevent others from using it, and to transfer the rights to the thing to others.

Tenure rights
Tenure rights are personal rights deriving from contractual agreements between the holder of the land and the owner, e.g. permission to occupy the land. They are by no means freehold or absolute rights, as the holder thereof lacks absolute control over the land he holds.

It is quite interesting to note that, among the various tenure rights affected by the Communal Land Rights Act, there are also the informal rights to land that are entrenched in the Interim Protection of Informal Land Rights Act 31 of 1996.

The concept of informal right to land means, inter alia, the use of, occupation of, or access to land in terms of any tribal, customary or indigenous law or practice. This concept is concomitant to the principles enshrined in the KwaZulu-Natal Ingonyama Act and the other customary land usages.

An informal right to land may be disposed of in accordance with the customs and usages of a particular community in terms of which a decision to dispose of any such right may be taken only by a majority of the holders of such rights present or represented at a meeting. Customary law and practice make no provision for registration of such rights against any title deed.

The Interim Protection of Informal Land Rights Act provides that all sales of the said rights will be subject to any existing informal rights and all persons including the state are bound by the provisions thereof.

New order rights
These rights are described by the Act as rights "confirmed, converted, conferred or validated by the Minister".

Section 9 of the Communal Land Rights Act vividly indicates that even the new order rights do not automatically confer absolute ownership. The holder thereof must still apply for conversion of their new order rights to freehold and such an application is subject to the approval of the relevant community (tribal authorities or the provincial house of traditional leaders in the case of a community in terms of indigenous law and culture). As far as the class of rights is concerned, this is obviously a personal right protected by statute.

Section 5 of the said Act also provides that the transfer of land to the community or person takes place subject to limitations, restrictions, and rights or entitlements to such land. The possibility here is that new order rights may be reduced to mere personal rights, which cannot be registered at the deeds office in the case of a community in terms of indigenous law and custom (informal rights to land).

Section 6(iii) of the said Act stipulates that the transfer of the said rights may be effected by means of a deed of communal land rights or other appropriate deed, in which case, if the aforegoing argument is anything to go by, a deed of communal land rights or a certificate of grant of communal land right would be appropriate and not a conventional deed of transfer, and the property clause of such a deed should merely refer to all rights, titles and interests to the relevant communal property.

Whereas Section 8 of the said Act provides that subsequent transactions in communal land must be performed under the Act and the Deeds Registries Act, it would appear that full applicability of the Deeds Registries Act is only plausible after the new order rights have been successfully converted, i.e. when the community has approved such a conversion into freehold, an approval that must be lodged as proof at the deeds registry.

As if the above non-palatable situation is not enough, the Communal Land Rights Act makes rather contradictory provisions with regard to the extent of the powers of the Ingonyama Trust, which contradiction is discernible from the following sections:

In terms of Section 32(b) of the Communal Land Rights Act, the Ingonyama Land Rights Board is vested with all the powers and duties provided for in the KwaZulu-Natal Ingonyama Trust Act 1994, despite Sections 25-27 of the Communal Land Rights Act.

The foregoing provision would give the impression that the said trust may still decide and implement any encumbrance, pledge, lease, alienation or other disposal of any trust land, or of any interest or real right in such land as provided in Section 2(A)(2) of the Ingonyama Trust Act. In short, this provision re-entrenches Section 2(A)(2) of the said Act.

It may be argued that the crux of the Communal Land Rights Act is to be found in the aforementioned Sections 25 to 27 thereof, namely the establishment of the Land Rights Board, the function of which is to advise the minister on matters related to communal land rights in terms of section 18 of the Communal Land Rights Act. One may thus get the impression that the Ingonyama land has been tacitly exempted from some vital provisions of the Act to provide leeway for indigenous land tenure administration, or that the Ingonyama Trust operates concurrently with the Communal Land Rights Act, or that the Communal Land Rights Act is only playing a watchdog role as far as Ingonyama Trust lands are concerned by providing only structural changes, name changes, administrative changes and including a member of the Land Rights Board to be able to co-operate at a particular interface between the two seemingly concurrent pieces of legislation. The question regarding the extent to which the Ingonyama Trust Act is amended by the Communal Land Rights Act can now be tackled and the answer is very clear - the said Act is only amended to a very limited extent, i.e. to the extent provided for in Chapter 9, whereby Section 31 only amends the Ingonyama Trust Act by changing its name to the Ingonyama Land Rights Board, which is vested with the same powers as those extended by Section 2(A)(2) of the Ingonyama Trust Act. To some land rights hopefuls out there, the Act seems to leave a lot to be desired in terms of providing "… for the democratic administration of communal land by communities", especially as it entrenches these powers in favour of a central body like the aforementioned trust.

To others, it is democratic enough that the Act does not completely repeal the Ingonyama Trust Act, as it thus promotes cultural rights, which are fundamental human rights entrenched in the Bill of Rights, Schedule B (Section 33) of the Constitution of the Republic of South Africa, Act 108 of 1996.

To add confusion to contradiction, Section 28(2)(a) of the Communal Land Rights Act provides that a Land Rights Board member may obtain access to any communal land and enquire into any relevant matter.

The corresponding question is: where would such an enquiry lead where the Ingonyama Trust Land is concerned, taking into consideration the fact that Section 32(b) of the Communal Rights Act clearly provides that the said trust should retain all the powers granted to it by the Ingonyama Trust Act? This may be regarded as confirmation of the mere watchdog role and the concurrent operation of the Communal Land Rights Act to indigenous law?

Section 5(2)(a)(iv) of the Communal Land Rights Act is also affected by the retention of full rights by the Ingonyama Trust in terms of Section 32(b), in the sense that, whereas the former provides for the transfer of trust land into communities, the latter confers similar or more rights (perpetual rights) to the Ingonyama Trust to transfer, alienate, lease, mortgage, etc.

Again, the concurrent operation of these Acts is brought to light here, or is this a contradiction?

Section 34 of the Communal Land Rights Act provides that transfers of communal land will be performed by the Board. This section could also be affected by the fact that the said board has the Ingonyama Trust component, which retains its inherent powers, i.e. powers conferred upon it by Section 2(A)(2) of the Ingonyama Act, meaning that the aforementioned transfers may follow an indigenous land tenure route not envisaged by the Act.

In all simplicity, the picture portrayed here is that it is almost impossible to entrench a conventional land rights system and to convert a land tenure rights system without amending or repealing in toto the pivotal provisions of a land tenure rights system that is concomitant to culture. The undesired effect of this is that the two systems will run concurrently or simultaneously, culminating in non-descript property entities that may not be capable of deeds registration, to the detriment of the prospective owners of the land.

Section 7 of the Communal Land Rights Act provides that the functions of a conveyancer may be performed by a suitably qualified departmental official, i.e. from the Department of Land Affairs. This provision is questionable from a deeds registration point of view as well as from an administrative point of view.

The said department already has a mandate to register deeds, one of the core functions of which is to examine the deeds prepared by conveyancers and conveyancing officials from other departments. Should the department play both the role of preparer and examiner/registrar, the integrity of the deeds-examining service could be seriously compromised by a conflict of interests and a very biased approach to examining deeds, as deeds examiners will invariably look after their own in passing, rejecting or expediting deeds.

From a deeds trading account point of view, it does not make good business sense to give business to a service provider who will immediately qualify for exemption from even small fees such as search fees in terms of Section 7 of the Deeds Registries Act.

It would be in the interests of good public administration if such deeds were to be prepared by qualified officials from the Department of Traditional and Local Government, considering the amount of control and the extent of their mandate over traditional affairs and communal rights.

In conclusion
If the above analysis about the differences between an indigenous community and a constitutional community or community formed by association, as well as the classification of the new order rights, is anything to go by, it would appear that rights accruing to either type of community will materially and conceptually differ, and it is this difference that is of interest to conveyancing and deeds registration. It must be clear from the outset whether the subject of ownership will be the land or the right, title and interest in the land respectively.

In the case of a community formed by association or by a communal constitution, it is clear that when the new order rights are vested in the community, they are vested as real rights. Therefore they may be registered at a deeds registry under Section 3(1)(r) of the Deeds Registries Act (within the context of "other real rights").

In the case of a community in terms of traditional or indigenous law and custom, the rights accruing to its individuals would be reduced to personal rights (informal rights to land) by the fact that the concept of absolute right of ownership is virtually non-existent in such a legal system, and are thus not registerable at the Deeds Registry.

As an alternative, the Deeds Registries Act 47 of 1937 (Section 63) will have to be amended to allow for the registration of personal rights.

Your views and comments please - Editor of SADJ

Republished with Permission from SA Deeds Journal

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